Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines

On Tuesday, October 2, the Court held oral argument in two important cases, Gall v. United States and Kimbrough v. United States. Together, these cases will allow the Court to address , and hopefully clarify, the answer to the question of what constitutes a "reasonable" sentence under the now-advisory U.S. Sentencing Guidelines.

As we explain in this column, these two cases continue seven years of dramatic change and uncertainty with respect to the constitutional status of both the U.S. Sentencing Guidelines and similar state sentencing schemes. Thus, they are likely to lead to two of this Term's most significant rulings.

Background: Prior Sentencing Injustices and the Advent of Sentencing Guidelines

For generations, judges in our federal and states courts were allotted virtually unfettered discretion when sentencing offenders convicted of crimes. The only checks on the judiciary's sentencing discretion were the statutory maximums and mandatory minimums dictated by Congress and state legislatures for various offenses.

Such unfettered discretion was greatly reduced, however, during the 1980s, when Congress and some state legislatures created sentencing systems that included sentencing "guidelines." In some cases, judges were required by law to follow (or provide reasons for not following these guidelines). In others, the guidelines were merely advisory. Either way, the goal of the guidelines was to reduce unwarranted disparity in sentencing by assisting judges in imposing more consistent, predictable sentences that would hopefully be far more fair.

Previously, two similarly-situated defendants might have faced very different sentences depending on whether he happened to be assigned to a given courtroom, or the courtroom next door - an untenable situation from the standpoint of fairness. Moreover, the sentence an offender would receive was often difficult to predict. Thus, the purpose of sentencing guidelines was to try to bring order, rationality, fairness, and predictability to the process. In addition to making the sentence the judge would impose more predictable, guidelines also increased the level of certainty that the sentence imposed represented the time the offender actually would serve. This was especially so on the federal level, where the advent of the guideline system was accompanied by the abolition of parole. Finally, the guidelines had the additional objective of ensuring that serious offenses and offenders receive serious sentences for their acts.

Why the Sentencing Guidelines Raised Serious Sixth Amendment Issues

In practice, the guidelines proved problematic. Over time, they grew in complexity, generating lengthier sentencing hearings and additional appellate litigation.. Furthermore, on the federal level, the consistency and coherency of the U.S. Sentencing Guideline system was negatively impacted by both Congress's imposition of mandatory minimum sentences, and its passage of numerous directives requiring the Commission to make specific changes to certain Guidelines.

However, these problems, serious as they were, were predominantly policy issues. In addition, the U.S. Sentencing Guidelines raised a serious constitutional issue as well. The U.S. Constitution's Sixth Amendment, which applies to both federal and state criminal proceedings, guarantees that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…. and to be informed of the nature and cause of the accusation." As it was judges, not juries, who made crucial decisions under the Guidelines, raised serious questions as to whether the right to trial by jury was being violated.

Of course, the right to trial by jury has always guaranteed jury determinations on facts, not on law, which judges decide. But which facts, in particular? All facts relating to an offense, or some subset of those facts?

In the federal system, all elements of a crime must be unanimously found by a jury beyond a reasonable doubt (consistent with the requirements of the Federal Rules of Evidence) in order for a defendant to be convicted.

But what about facts that were relevant only to the sentence, not to proof of the elements necessary for conviction? Could a sentencing judge, not a jury, find those facts? And could he or she do so - as was the case under the U.S. Sentencing guidelines, by a mere preponderance of the evidence and without the applicability of any evidentiary rules?

These questions were all the more important because fact-findings by the judge at sentencing could, in the federal system, change the length of a defendant's sentence--sometimes by ten years or more. Accordingly, many were troubled that these fact-findings were not made by a jury, and were subject to such a low evidentiary standard.

How the Supreme Court Transformed the Guidelines' Role in Light of the Sixth Amendment Issues

It turned out, eventually, that the Supreme Court was equally troubled: Indeed, it ultimately found Sixth Amendment violations relating to both state and federal sentencing guidelines, in a series of cases, beginning in 2000 with Apprendi v. New Jersey and ending in 2005 with Booker v. United States.

In Booker, the Court held that the mandatory U.S. Sentencing Guidelines system did, indeed, violate the Sixth Amendment. However, it also held that, if the Guidelines were treated by courts as advisory, not mandatory, there would be no constitutional violation. The Court also held that appellate courts should review sentences for reasonableness.

Moreover, earlier this year, in Rita v. United States, the Court also held that a sentence imposed within a properly-calculated (though still advisory) Guidelines range was "presumptively reasonable." After Booker, it had appeared to be possible that trial judges might have very wide discretion to impose sentences anywhere between statutory minima and maxima, since "reasonableness" can be in the eye of the beholder. But Rita added more specificity to what it meant to deem a sentence "reasonable."

Important questions remained in the wake of Rita: For example, are sentences imposed outside a properly calculated, advisory Guidelines range presumptively unreasonable?

On might think, based on Booker, that the answer in no. Suppose a sentence would automatically be invalidated on appeal as unreasonable simply on the ground that it is not within the Guidelines range. That result would surely make the Guidelines advisory in name only, and mandatory in practice. Similarly, but less dramatically, applying a presumption of unreasonableness to outside-the-Guidelines sentences would seem to at least come quite close to making the Guidelines mandatory once again.

Gall: The First of the Two Key Sentencing Cases the Court Will Decide This Term

That brings us to this Term's cases. In Gall, the defendant was convicted of conspiracy to distribute the drug Ecstasy. The Guidelines sentencing range was 30 to 37 months, but the judge imposed only probation, stating that, under the circumstances, he believed the sentence was reasonable, for imprisonment would be overly harsh.

The government appealed, and the U.S. Court of Appeals reversed, holding that the sentence was "unreasonable" because "an extraordinary reduction [in a sentence] must be supported by extraordinary circumstances." Gall will test whether this formulation of the law is accurate: Must a sentence imposed outside the advisory Guidelines range be supported by extra evidence and reasons, and must the underlying facts constitute extraordinary circumstances that justify the judge's moving outside the range?

These questions are very similar to the one we mentioned above: Currently, there is a presumption, on appeal, that sentences within the advisory Guidelines are presumptively reasonable. Is there also a companion presumption, on appeal, that sentences outside the advisory Guidelines are presumptively unreasonable -- or at least not quite as reasonable as they otherwise would be, and thus subject to additional appellate scrutiny?

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context. The Court seems caught between a rock and a hard place. A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again.

Kimbrough: The Other Key Sentencing Case the Court Will Decide This Term

In Kimbrough, the defendant pled guilty to drug and firearm offenses. Largely because crack was involved, the advisory Guidelines range was quite high: 168 to 210 months. The Guidelines also would have tacked on a minimum of 60 additional months due to the involvement of a firearm, for a total minimum sentence of 228 months, or 19 years.

The court, however, opted to impose a lesser sentence of only 180 months (15 years), reflecting the combination of the two minimums for drugs and firearms offenses, respectively. The judge's reasoning was that, due in part to the infamous 100:1 disparity between sentences for crack and powder cocaine, the 19-year sentence was too harsh.

The government appealed, and on appeal, the lower, 15-year sentence was reversed, on the ground that it was "unreasonable" for a judge to sentence below the advisory Guidelines due simply to qualms about the 100-to-1 crack/powder cocaine disparity.

In Kimbrough, the Court must thus decide if it is per se unreasonable for a trial judge to lower a sentence based on disagreement with the disparity. The Court's resolution of the issue may well have consequences for a wider question: Can a judge sentence below (or above) the Guidelines range when he finds the range itself unreasonable per se, perhaps in light of the reasoning behind the Guideline, as expressed by the official comments to the Guidelines.

During oral argument, the Justices seemed very disinclined to approve of district court judges exercising their discretion in order to disagree with Congressional policy. After all, judges are supposed to interpret the law, not made policy. However, in this particular instance, the district judge has special support for his position, from an unusual ally: Even the U.S. Sentencing Commission, the expert agency Congress itself created to promulgate the Federal Sentencing Guidelines, has consistently disputed the validity of the 100-to-1 ratio. Moreover, Congress does retain some direct, mandatory control in such cases based on statutory maxima and minima.

These questions are fascinating and they must be answered for our federal sentencing system to begin to work effectively again. Currently, the federal courts, prosecutors, probation offices, defense counsel, and most importantly, federal defendants themselves must confront what Justice Souter referred to as the "coherence problem": Can a federal judge disagree with the Federal Sentencing Guidelines on policy grounds, yet and at the same time, while articulating his or her reasons for doing so, issue a sentence deemed reasonable by a federal appeals court?

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

Mark H. Allenbaugh is a managing partner with the law firm of Allenbaugh Samini LLP with offices in Newport Beach, California, and Guangzhou, China. He is a former Staff Attorney for the U.S. Sentencing Commission. Donald A. (Andy) Purdy, Jr. is a partner with the law firm of Allenbaugh Samini LLP. He is a former federal prosecutor and has served as Acting General Counsel and Chief Deputy General Counsel to the U.S. Sentencing Commission, as well as Acting Director of the National Cyber Security Division for the Department of Homeland Security. The views expressed herein are the authors' own and do not necessarily reflect the views of any of the named organizations.